How Can The American Legal System Improve Its Approach To Policing And Regulating Digital Technology Without Unduly Stifling Innovation And Civil Liberties?

In today’s age of digital proliferation the forces of Internet democratization demand further regulation and policing. However, the dilemma is that this will undermine the very fabric of the interconnectedness of the digital world. The solution is that our policies must maintain a commitment to the principle of balance to allow for digital proliferation to be channeled through efficient regulation and policing. So in order for the American legal system to improve the regulation and policing of digital technology it must improve checks and balances against the National Security Agency and other law enforcement agencies, oppose net neutrality and focus on antitrust law, upgrade technological capacities of law enforcement agencies, and promote international coordination on cyber issues.

The balance between security and digital privacy is necessary to ensure the maximization of the key values within the social contract. Security and liberty were shown to remain in balance by John Locke in his second treatise on government who noted that “he will have to part with as much of his natural freedom to provide for himself as is required for the welfare, prosperity, and safety of the society.” Thus the philosophical construct that was envisioned was a balance of power between maximizing the common good along with the necessary checks and balances in place to prevent the unjust violation of liberty. This is an important theory in US legal practice and the formal term for it is called Equilibrium Adjustment. Orin Kerr of the Harvard Law Review explained in 2011 that in 4th amendment cases when technology proliferates and expands police powers judges normally try to expand protections to reflect the balance that was set before proliferation.

The issue with equilibrium adjustment is judges often have incomplete information on the scope of the technology. When programs are set up often times the checks that are meant to serve judicial functions are weak. The National Security Agency demonstrates this phenomenon in three ways. First, there is a clear violation of the principles set by the Supreme Court in Katz Vs. United States and United States Vs. District Court. David Sirota of the International Business Times elaborated in 2013 that the FISC (aka Foreign Intelligence Surveillance Court) allowed the NSA to have an ongoing warrant to obtain digital communications, which is a violation because prior judicial consent is required to obtain digital communications under the 4th amendment. The second is that the FISC lacks the hallmarks of traditional judicial oversight. In a D.C. District Court ruling Judge Richard Leon observed that judges operate best in an adversarial setting and the current FISC only hears the governments take on the law and the constitution. This is evidenced by the fact that the FISC only denied .03% of all requests for access and this is according to the Stanford Law Review in 2014.

The third way is that the NSA relies on flawed interpretations of the Patriot Act. In fact the Patriot Act’s own author has expressly said that the NSA’s interpretation of section 214 and 617 of the act is very abusive as it justifies the potential seizure of every American communication. It does this through the three-hop system, which the Guardian Newspaper notes that it evaluates the seizure of communication based on the people that are affiliated with the suspect and those affiliated with the affiliates. That’s why CNN reported in 2015 that a recent court ruling found that the NSA’s interpretation of the Patriot Act was found to be illegal.

There are two ways we can reform the system bearing in mind the current state of surveillance. We need to incorporate greater congressional oversight as they are politically speaking mandated by the American people to ensure efficient oversight. Second, we need to commit to structural reform of the FISA Court to allow for a more adversarial process along with a codifying of strict rules on the NSA’s boundaries in surveillance. This is needed to assure the American people that the NSA will not go beyond statutory boundaries as the NSA violated its own rules 2776 times and by the end of 2016 the Forrester Foundation reported that US technology sectors stand to lose 180 billion dollars in lost profits from the dilution of trust in US services. So the NSA’s failed attempt at digital regulation is representative of the larger trends including net neutrality.

Net neutrality regulations represent a continual trend among government agencies to implement what is called procedural opportunism. According to the Boston College Law Review the Federal Communications Commission’s procedural opportunism is defined as the use of policy mechanisms to expand the agencies scope of power. This is problematic in the area of net neutrality because such regulations could stifle innovation. According to the same report the FCC seeks to characterize broadband Internet providers as common carriers under Title II of the Federal Communications Act. In addition, the FCC wants to enact rules that will provide disincentives to charge content providers and block out content. Unfortunately despite these good intentions according to a study by Oxford University these regulations could result in higher prices for consumers and stifle the development of broadband Internet. As policymakers we can’t let that happen because according to CNN News the Supreme Court has ruled three times against this expansion of FCC power and in a study by the Public Policy Institute of California broad band Internet services are important to local economic growth. This is especially true for Internet entrepreneurs. In contrast to regulation we must focus on the recommendations of the Mercatus Center, which focus on anti trust law, which would move toward a better balance between promoting innovation and having proper regulation in place.

The motives of the agencies focus on the need for policing the Internet of terrorism and crime. Despite the criticisms I presented earlier, there are other ways that we can improve these aspects without endangering civil liberties and innovation. The controversies of the FCC and the NSA are representative of the larger trends that focus the need to upgrade capabilities of law enforcement. These would be preferable because under equilibrium adjustment technology has surpassed the ability of agencies to keep up with crime. One of the ways that we do this is to upgrade the Communications Assistance for Law Enforcement Act to regulate existing technological services as it only partially regulates the wide array of telecommunications technology that exist today. The Brookings Institution explained in 2014 that this would give the government a basic level of access to new mobile technology in order to attain warrants for the arrest of criminals. We must be cautious in its application though because the Center for Democracy and Technology analyzed that the government is now trying to expand its capabilities beyond the legislation’s original scope. Thus the necessary checks and balances must be put in place or else the Harvard Policy Center explains that the US could relapse into a system of preventative law enforcement, which is contrary to our founding principles.

The most important part to ensure the balance between security, civil liberties, and innovation (which would prevent the relapse into preventative law enforcement) is to promote international coordination on cyber crime and terrorism with application of existing frameworks of international law. The need for is apparent because Peter Singer of the Brookings Institution calculated that cyber warfare has produced the largest transfer of wealth in the history of civilization. The Center for Strategic Studies explains that these actors are not constrained by checks, which make very hard to bust in the event of an attack that takes place. This is why coordination on these issues is essential to prevent a disunited front against these actors on the Internet. What is essentially happening right now is that other regions of the world are creating their own regulatory regimes for dealing with Internet regulation and cyber issues. This includes according to the Guardian a new plan to regulate the Web by the EU. This is the exact opposite of what should be happening because when the NSA tries to crack Tor or when nations act alone without consensus it risks tearing the Internet apart. Therefore what must happen is an abandonment of domestic oriented policy in favor of a strengthening of international initiatives to keep the Internet united while dealing with cyber issues under the checks of a strong international legal regime. This includes regulation under customary and human rights law, which appeal to the broader argument that initiatives must be expanded with moderate restraint.

In 2014 I wrote an article by Student World Report, which explains “in 1971, the Philosopher John Rawls of Harvard University envisioned a theory of Justice where the actions of states would be governed by consideration for the long-term interests of future generations. With a geopolitical application, these actions should involve a respect for a wide array of national interests in the international community. Only with this can we build a world order based on social capital between states with norms that govern the actions of the multitude of these states.” The challenges for this strategic vision are that we must reform the domestic aspects of our policy including the policies of the NSA, FCC, and law enforcement. In the realm of the international sphere the American legal system promote the idea of multilateralism to create the balance between innovation, civil liberties, and security in our policing and regulation. This will prevent an already looming catastrophe of the breakup of the Internet but will ensure that we have restraint over our actions. As noted by Dani Rodrick of Princeton University a democratic system of constitutional liberalism cannot promote the common welfare without the proper institutions in place to prevent us from becoming the enemies that we seek to destroy.

Intellectual PropertyOne of the focuses of our law firm is intellectual property. This involves copyright, trademark, non-disclosure agreements, and other sorts of rights that are not tangible. They're not things that you can hold. They are so-called intellectual rights. There are three things about these rights that might be surprising to most people. The first thing is that, believe it or not, even without registering a copyright or a trademark, you actually can have what are called common law rights, meaning that you actually have legally protectable rights without registering with the federal government. Now, admittedly, those rights are not as extensive as they would have been if you had registered. So clearly what we tell people to do in every case is to register. But nevertheless, if you didn't register and there was an infringement of some type, there still may be a remedy. And this is the critical part of this. This is something that we urge people to understand. Do not give up just because you failed to register. Another thing that's kind of interesting about intellectual property that you might not know is that you can sell intellectual property. There are people, there are companies who literally will buy the copyrights to something or the trademark to something and pay substantial money for it. The reason why I'm emphasizing that is this is one of the key reasons you hire a lawyer, not so much to sell the intellectual property, although that is something you should do when you're selling it. But in addition, to protect it, to make sure that you police it, because by allowing others to infringe without dealing with that infringement in some way, without stopping them or taking efforts to stop them, you can degrade your own intellectual property rights to such a degree that it's something that might not be able to be sold. In other words, it might not be able to be enforced in a clean way, in a way that's going to lead to a successful suit for infringement. And who wants to buy intellectual property when it's a pig in the poke, when they don't really know what they're buying. They don't even really know whether it's worth anything at all. The third thing that people may not know about intellectual property is that it can be used as collateral for a loan. Now, this may be something that you've not dealt with before. Or it's possible that you deal with this all the time. But either way, it's something that we note because we have addressed it in a number of instances for clients. We find that when someone is trying to obtain a loan and they're asked to give collateral, frequently the collateral that they're being asked to give is something that's already encumbered. It's something that may not be worth what the loan value is worth. And therefore it may not serve as enough collateral. Frequently if there are intellectual property rights, if there are these what they call intangible rights, the rights to the name of a business, the rights to the name of a work of art, a book, a film, a musical composition, these things can actually be encumbered as collateral for the loan. They actually can be literally the subject of a filing with the government to show that this collateral is part of that loan, this collateral secures it, and in fact that this intellectual property has been encumbered. The interesting twist on that is that the reverse is also true. When you look at that and you look to buy intellectual property, you're looking at the situation. You're saying to yourself, well, wait a minute. I can buy the intellectual property. It does have integrity. It was policed. All those things are there. But is it collateral for somebody's loan, and does anyone else have senior rights to me as a lienholder? So you put the two together, and you say, if I'm going to buy the intellectual property, I want to do a search to see if there are any liens or any loans where this has been used as collateral. Intellectual property is often an overlooked aspect of a business. Intellectual property exists in almost everything. Almost every industry that you come across will have aspects of intellectual property. It can be as simple as the name of the company, the name of a product, the branding, the marketing materials that are created, the website. All of these are pieces of intellectual property, both ones that need to be secured in terms of obtaining the rights from your employees or from your licensees as well as ones that need to be protected by obtaining trademark registration, copyright registration, protecting trade secret by ensuring that you have adequate contracts to maintain confidentiality. And then the last piece of it is enforcing those rights, making sure that you have everything lined up so that when someone does infringe upon your intellectual property rights, you can immediately get into court to stop them and to be made whole from the damage that's been caused. The ultimate point to all this is that it is critical that you retain counsel when you are dealing with complex issues involving intellectual property. There are many law firms that do this. We are one of them. This is part of our focus. It's something that we enjoy doing. It's something that we find very creative and very interesting. And if you have such an issue, we would be happy to talk to you about it.

Internet Law Info Blog

Internet and Tech Law[MUSIC PLAYING] This generation of lawyers is creating an entirely new area of law. Internet law. An Internet and technology matter has the tendency to be extremely complex. Many people think that, because it's so easy to post a website and to conduct business online, that means the legal matters associated with those businesses are equally simple. Unfortunately, that's not necessarily the case. A website has the ability to reach people all over the world. And obviously then throughout the country. That means arguably your customers are in each of those locales as well. What that means is that there's an enormous number of laws which your business is now required to comply with. There are federal laws, and almost every state has some level of law that may apply, whether to Internet or to the transactions that you are conducting online. So this is an extremely complex area of law, and it really requires an attorney who understands those nuances and all these complexities that come along with it. As we know, a click-through is as good as often as a signature would be on a document that is printed out. There are laws that relate to that that allow it. However, one has to be careful. What is it we're clicking through? What is it we're agreeing to? And how is it being agreed to? In addition to all that, there are statutes that relate to the Internet that concern defamation, that concern putting someone else's intellectual property up and infringing. There are protections and immunities that are given to websites. But in addition to that, there are also situations in which the website itself has to be careful that it is not going to back into a situation where it inadvertently is conspiring to violate trademark, copyright, and other intellectual property rights. Social media has become quite a phenomenon, taken over a large part of our culture. And even everyone's everyday routine. I think, by and large, the majority of the public utilizes social media in one form or another, whether that be Facebook or LinkedIn or whatever the newest iteration of a social media site that's popular might be. People are rather freely engaging in communications everyone on those sites, posting personal information, posting pictures and engaging communications with friends, family and even colleagues through the social media websites. Oftentimes, those things are being done without even a thought as to what the legal ramifications of those items might be. Most of the time, those websites will be governed by Terms and Conditions and Privacy Policy that will talk about the limitations of what someone can do on those websites, the rights vis-a-vis one another of the users of the website, as well as what the rights of that website are as compared to its user. Most people, when they're communicating or posting pictures, don't think about the fact that that very communication-- the text of that message or the picture itself-- could be owned by the website. And oftentimes, that's exactly what these terms will say. By merely posting a picture, the website owns it. Or if nothing else, they're obtaining a license to it so that they can really utilize it, distribute it, post in their marketing materials. Even after you might have taken it down from your own profile or otherwise from the website. In essence, Internet law is something that is challenging. It's unique, it's interesting. But more importantly, it's something that's creative. And the attorney must approach it with creativity and imagination in order to serve the client's needs.

Internet Defamation Law Blog

Internet Picture Removal[MUSIC PLAYING] One of the issues that has come up again and again in our practice relates to the wrongful posting of information about another person on the Internet. This is another example of how the law has simply not kept pace with the developments that have occurred in the 21st century. It used to be that when someone gossiped about another person, or said something that wasn't true, that ancient concepts of defamation, concepts of interference with someone else's business or prospective economic advantage, these common law concepts would protect the person. It used to be that when you gossiped about somebody else, you did it in the town square. You did it at a community meeting. You did it behind closed doors. Needless to say, that's not the situation anymore. Now when someone wants to say something about someone else that's not true, when someone wants to defame them and hurt their reputation, all they need is a computer, an Internet connection, and a bad motive, and they can literally make a worldwide comment about this person. They can post something that can be seen in every country in the world. Millions of people. How do you deal with that from a legal perspective? And the answer is that there are techniques that we can use. They are not perfect and they're not complete. But there are techniques. For example, what was it that this person said? Was it opinion? Or was it a fact? And if it was a fact, can it be proven to be an untrue fact? Can it be proven that this person knew that it was untrue or that it was said negligently? All these questions come into play in the context of something that is said that should not have been said because it was possibly defamatory. But there's another level. And the other level is, can we find a way to say that this is also a violation of intellectual property rights? In other words, think about it. Did this person lift a picture from a website that they didn't own? Or took it from a camera or cell phone if they didn't have access to? And they should not have access to it. And somehow, they got a hold of it. And they posted it as part of the possibly defamatory material. Wouldn't that begin to state a claim for infringement of intellectual property? And if so, is there a way of being creative in the representation in the legal analysis so that we're not limited to whether this thing was true or not? Certainly we're not limited to whether it was a bad thing to say or not. We know that. It was a bad thing to say. But also is there legal significance to what they did that goes beyond the truth of the matter? These are the sorts of questions that we ask when we deal with people who are the victims of wrongful posting. There's this new concept of revenge pornography that is taking our culture by storm. In essence, it's someone taking a picture, often from a girlfriend or boyfriend, a picture that was taken in the privacy of that relationship. And after that relationship is over, that one of the people taking and posting the picture online, making it publicly available in order to humiliate or otherwise punish the person after breaking up with them. Hence the term revenge pornography. Unfortunately, the minute a picture is taken and shared on the Internet, it becomes instantly available to an exponential number of people. Once it's on one website, a lot of times these adult websites have a tendency of just stealing pictures. So it's not the fact that they have the rights to it and are going to prohibit their competitors from taking it. But there tends to be a common practice in the industry of it being on one website. The next website steals it, posts it, and it just is an ongoing effect where one person posted one picture. And all of a sudden, it's everywhere. And now you're dealing with innumerable websites that you now have to contend with to get the picture actually removed from the Internet. Unfortunately, this is a little bit of a unique legal situation in that the clients are often dealing with a huge emotional undertone to this representation. They are often coming to us having been humiliated. They are embarrassed that the pictures are out there. They don't want their employer, their kids, their kids' friends, or even sometimes their spouses to know that these pictures exist. We have to sit there and say, very dispassionately, very objectively, is this the kind of thing that we'll be able to convince a judge violated the law? Our firm welcomes inquiries about this sort of thing. It's something that we take very seriously. And it's something that we like to help with as necessary. [MUSIC PLAYING]

Television, Film & Music Law Blog

Entertainment and Sports Law[MUSIC PLAYING] Our firm handles the representation of sports and entertainment law clients. Now, there are many things about that representation that are not unique, that are basically the same as representing any personal services business. But there are other aspects of it that are kind of interesting, and really only apply to sports or entertainment figures. One is that they generally have something of an entourage. It may be an entourage that's already formed. It may be one that's forming. For example, someone in the music business might have a manager, an agent, a publicist, an accountant, and now, of course, a lawyer, and others. There may be band members. There may be people who write the songs, and so forth. All of these people should have some sort of legal relationship that is set out in a contract. Those contracts need to be vetted carefully by the attorney. Those contracts have to be looked at carefully and, as appropriate, negotiated. A big piece of an entertainment or sports representation often includes intellectual property, whether it be a musician's rights in a song, the copyright, how that's being assigned through the recording agreement, the limits of any license, the royalties that are going to be paid and how it can be exploited, to dealing with a sports team or an athlete, and dealing with their right of publicity and any trademarks that they may have created surrounding their persona, and how that will be marketed and endorsed. That's all aspects of intellectual property that can be protected, as well contracted for. The important thing overall about the representation of a sports or entertainment figure is to understand that their talent is not enough. Their talent will only take them so far. Really, what has to be done is that the lawyer has to protect the viability and the value of that talent in the marketplace.